BY THE COURT
that a criminal sentence is illegal because it violates the
United States Constitution cannot be brought under K.S.A.
from Sedgwick District Court; Bruce C. Brown, judge.
Maharry, of Kansas Appellate Defender Office, was on the
brief for appellant.
J. Maloney, assistant district attorney, Marc Bennett,
district attorney, and Derek Schmidt, attorney general, were
on the brief for appellee.
1974, Elton Donahue received a life sentence with the
possibility of parole because of his convictions for
aggravated kidnapping. In 2016, Donahue filed a motion to
correct an illegal sentence. He claims his sentence of life
imprisonment with a mandatory 15-year term violates the
Eighth Amendment to the United States Constitution because he
was only 16 years old when he committed the crimes. The
district court summarily denied the motion. Donahue directly
appeals to this court. We affirm because the motion is not
the appropriate procedural vehicle to raise his claim. See
State v. Samuel, 309 Kan. 155, 157, 432 P.3d 666
(2019) ("[T]his court has repeatedly held a motion to
correct an illegal sentence under the statute cannot raise
claims that the sentence violates a constitutional
and Procedural Background
10, 1973, Donahue, then 16 years old, committed various
crimes. The State charged him with multiple counts, including
two counts of aggravated kidnapping under K.S.A. 1973 Supp.
21-3421, which was a class A felony. After a jury found him
guilty as charged, the district court sentenced him to life
imprisonment with a mandatory 15-year term before being
eligible for parole for the aggravated kidnapping counts. See
K.S.A. 1973 Supp. 21-4501(a) ("Class A, the sentence for
which shall be death or imprisonment for life."); K.S.A.
1973 Supp. 22-3717(2) ("Persons confined in institutions
shall be eligible for parole after fifteen  years if
sentenced to life imprisonment.").
2016, Donahue moved under K.S.A. 22-3504(1) to correct an
illegal sentence based on the United States Supreme Court
decisions in Miller v. Alabama, 567 U.S. 460, 132
S.Ct. 2455, 183 L.Ed.2d 407 (2012) (holding mandatory life
imprisonment without parole for those under the age of 18 at
the time of their crimes violates the Eighth Amendment's
prohibition on cruel and unusual punishments), and
Montgomery v. Louisiana, 577 U.S., 136 S.Ct. 718,
193 L.Ed.2d 599 (2016) (holding Miller should apply
retroactively for purposes of state collateral review of
sentence). In his memorandum supporting the motion, Donahue
acknowledged Miller was applicable only to those
juvenile offenders who were sentenced to life without the
possibility of parole but asked the district court to extend
Miller to his case, i.e., serving life with the
possibility of parole.
district court summarily denied the motion, reasoning it had
no jurisdiction to consider the constitutional claim in a
motion to correct illegal sentence under K.S.A. 22-3504(1),
and, even if it had jurisdiction, the sentence was not
unconstitutional as his sentence was life with the
possibility of parole and he was in fact paroled
"several times." See Makthepharak v.
State, 298 Kan. 573, 576, 314 P.3d 876 (2013) (when
presented with a motion to correct illegal sentence, a
district court should conduct an initial examination of the
motion to determine if it raises substantial issues of law or
directly appealed to this court. Jurisdiction is proper.
K.S.A. 2017 Supp. 22-3601(b)(3) (direct appeal when "a
maximum sentence of life imprisonment has been
imposed"); Kirtdoll v. State, 306 Kan. 335,
337, 393 P.3d 1053 (2017) ("A ruling on a motion to
correct an illegal sentence, where the sentence imposed . . .
is imprisonment for life, is directly appealable to this
court must determine whether Donahue's constitutional
claim fits within the definition of "illegal
sentence." An illegal sentence under K.S.A. 22-3504 may
be corrected at any time, but the circumstances under which a
sentence is deemed illegal for K.S.A. 22-3504 purposes are
"narrowly and specifically defined." State v.
Swafford, 306 Kan. 537, 540-41, 394 P.3d 1188 (2017).
Whether a sentence is illegal within the statutory meaning is
a question of law over which appellate courts have unlimited
review. St ...